The Court of First Instance has ruled that where an institution receives a
request for access to documents it is required, in principle, to carry out
a concrete, individual assessment of the content of the documents referred
to in the request.
In 2002 the European Commission found that eight Austrian banks had participated
in a cartel known as the 'Lombard Club' and imposed fines of 124.26 million
euros on the participants.
Following this decision, an Austrian consumer organisation brought several
proceedings against one of the participants in the cartel, Bank fur Arbeit
und Wirtschaft AG (BAWAG) claiming that BAWAG had charged its customers too
much interest. In connection with these proceedings, the consumer association
applied to the European Commission for access to the files for the Lombard
The European Commission refused to give access to the files and the consumer
association brought an action for annulment of the decision to refuse access
before the Court of the First Instance. The basis for the action was that the
European Commission's decision was incompatible with the right of access to
documents, and in particular, Regulation (EC) No 1049/2001 regarding public
access to European Parliament, Council and Commission documents.
The Court of First Instance ruled that an institution receiving the request
for access must examine and reply to that request. In particular, the institution
should determine whether any of the exceptions are applicable. The court also
ruled that an institution is required, in principle, to carry out a concrete,
individual assessment of the content of the documents referred to in the request.
An examination is not required in all circumstances, however, only in exceptional
cases and only where the administrative burden exceeds the limits of what may
be reasonably required can there be an exception to the obligation to examine
With regard to the Lombard Club request, the court did not rule on whether
the examination was unreasonable but did find that it was not clear that the
Commission had considered the various options available to it to increase the
chances of the applicant receiving at least access to some of the documents.
The Court therefore annulled the Commission's decision.
The European Commission's decision comes at a time where, in the United Kingdom,
Pernod Ricard has recently made use of the Freedom of Information Act to attempt
to gain access to documents exchanged between the Office of Fair Trading ('OFT')
and Bacardi. The freedom of information request was intended to assist Pernod
Ricard in its appeal to the Competition Appeals Tribunal regarding the OFT's
decision to accept assurances from Bacardi. The matter has now come to an end
following proposals by Barcardi to amend its assurances in terms which were
acceptable to both the OFT and Pernod Ricard.